‘All unjust personal laws must go, be they Hindu, Muslim or Christian’

Indira Jaising

Senior lawyer, Supreme Court of India, and women’s rights activist
Triple talaq is a system of di-vorce that exists in Muslim Per-sonal Law that allows the husband to divorce his wife by uttering the word ‘talaq’ thrice. This right does not exist for the woman. A Muslim woman has no right to divorce her husband through a system similar to the triple talaq. She would need to go to a Darul Qaza and prove the atrocities committed by her husband in order to get a divorce.

I have dealt with several cases where Muslim women have been driven to the divorce court in prolonged proceedings when their husbands have opposed a divorce. She can, however, get an extra-judicial divorce on the condition that she forgoes her mehr. The situation is patently discriminatory against women. It is primarily an issue of justice – can a marriage contract entered into by the free consent of two parties be broken by the unilateral will of one party? No other contract, including commercial contracts, can be broken in this manner. The breaking of a marriage contract has emotional and financial concerns that go beyond any other contractual concerns. Often it is not only the interests of women that are at stake but those of children as well.

The Bombay high court observed many years ago that the practice of triple talaq may be ‘good in law’ but is ‘bad in theology’. This is a strange role reversal. I believe the truth lies the other way around – ‘may or may not be good in theology’, but ‘bad in law.’

Supreme Court on Triple Talaq:

In Ahmedabad Women’s Action Group (AWAG) and others v. Union of India, (1997) 3 SCC 573, a writ petition was filed to declare Muslim Personal Law, which enables a Muslim male to give unilateral talaq to his wife without her consent and without resort to judicial process of courts, as void, offending Articles 13, 14 and 15 of the Constitution.

However, the Court refused to entertain the writ petition because the issue involved State policies. The Court was of the opinion that the remedy could not be provided by the judicial process and instead must be sought elsewhere.

At the same time, the Court has tried to introduce some safeguards into the talaq process. The Court has stated that talaq, in order to be effective, has to be pronounced. In Shamim Ara v. State of UP and another, (2002) 7 SCC 518, a mere plea taken in a written statement of a divorce having been pronounced sometime in the past was held to not be treated as effectuating a talaq. Instead, a talaq had to be ‘pronounced’, that is, it had to be proclaimed, uttered formally and articulated. Therefore, the Court has introduced a condition precedent for the effectiveness of a divorce.

I totally disagree with this approach of the court in the AWAG case. Under our scheme of laws, the courts are bound to give their opinion of the constitutional validity of any personal law, be it Hindu, Muslim, Sikh or Parsi. I recognise the problem that arose in the Shah Bano case. Yet I think that the problem there was the fact that the Court, instead of confining itself to the constitutional and legal validity of the grant of maintenance to Muslim women under Section 125, CrPC, took it upon itself to interpret the Koran.

It is no part of the court’s role to interpret the Koran and spell out the entitlements of women from the Koran. Our constitutional entitlements as spelt out by the courts must come from the Constitution, not the Koran or the Manusmriti. It is in no part the business of the courts to interpret religious texts, that is the job of theologians, not the constitutional court. When judges begin to interpret the Koran, or give us a definition of ‘Sati’ as being a Sita from Ramayana and Anasuya, or interpret the content of ‘Hindutva’ as in Manohar Joshi’s case, they destroy one of the core commitments of the Constitution, namely, secularism. No secular judiciary has the right to interpret what is the core content of any religion, Hindu, Muslim or Christian. The storm over Shah Bano was over the authority of the Court to interpret the Koran. It has nothing to do with gender justice.

While the Personal Law Board may or may not recognise a triple talaq, a constitutional court certainly should not, on the ground that it is unjust, unfair, arbitrary and discriminatory.

We are passing through difficult times, when right wing forces have polarised society and unleashed an assault against the minorities. At such times it is even more necessary that the courts take a "hands off" position on religion.

This, however, does not mean that they take a ‘hands off’ position on law. Any rule, regulation, custom or law that binds citizens is capable of being challenged on the grounds that it violates the fundamental rights of citizens. Triple talaq must be declared unconstitutional, not because it is un-Islamic, but because it is unconstitutional.

More than 54 years after independence, it is time we recognise that our constitutional values are as much a part of our cultural inheritance as any other. Courts have been put in place to enforce constitutional values. That is their job. Their refusal to do so is an abdication of function. It is relevant to note the approach of the Supreme Court in Danial Latifi v. Union of India, (2001) 7 SCC 740. In interpreting the Muslim Women (Protection of Rights on Divorce) Act, 1986, the Court held that the Act would be unconstitutional if not interpreted to mean that women would get a reasonable and fair provision and maintenance. The Court fought shy of declaring the Act unconstitutional, but at least they did not base their interpretation of the Act on theology, but on the Constitution.

It is not as if courts have taken a hands off approach to Muslim law alone, they have done the same with Hindu Personal Law. No provisions of Hindu Personal Law have been declared unconstitutional, though repeatedly challenged. This deference to religion, be it Hindu or Muslim, is unhealthy and has subverted a debate on gender justice.

All unjust personal laws must go, be they Hindu, Muslim or Christian. The issue is not uniformity but gender justice – all unjust laws must be declared unconstitutional. It is up to women of all persuasions to challenge all unconstitutional personal laws. While the Personal Law Board may or may not recognise a triple talaq, a constitutional court certainly should not, on the ground that it is unjust, unfair, arbitrary and discriminatory.

At a recent meeting of the All India Muslim Personal Law Board, the Board refused to discuss the issue of triple talaq and the need to reform the practice into more equitable and gender sensitive practices. The meeting ended with the promise that the Board would spread awareness among the Muslim community about practices of ‘triple talaq in one sitting’.

These may be laudable efforts by the Board. The body however has no authority to lay down the law of the land and interpret the Constitution. Its legitimate role would be advocacy for the acceptance of an altered and equitable constitutional regime.

Archived from Communalism Combat, July 2004 Year 10   No. 99, Cover Story 7



Related Articles